The object of inquiry and organization studies

2021 ◽  
pp. 017084062110532
Author(s):  
Christian Frankel
Keyword(s):  
Burden Of Proof ◽  
Reasonable Doubt ◽  
Presumption Of Innocence ◽  
Van Fraassen ◽  
Formal Organization ◽  
Organization Studies ◽  
Empirical Inquiry ◽  
Legal Principle ◽  
Empirical Stance ◽  
Made In

This essay argues for reinforcing the empirical stance within organization studies by more systematically presuming non-organization. The empirical stance within organization studies thereby comes to revolve around organization as a claim made in empirical inquiries. The presumption of non-organization takes the legal principle of presumption of innocence as its paradigm. It works by placing the burden of proof on the empirical inquiries to establish, beyond a reasonable doubt, that what is inquired into is an instance of organization (where organization may be understood in terms of organizing, organization of something, formal organization etc.). Organization scholars may assume organization — and often for good reasons— when making a restaurant, a market, or something else object of inquiry. However, adopting the presumption of non-organization requires organization studies to make explicit what is understood by organization as well as what findings are mobilized to establish the claim that organization, in the sense subscribed to, is found. Hereby the presumption of non-organization reinforces the empirical stance as ‘a recurrent rebellion against the metaphysicians’ (van Fraassen). Metaphysics is not cancelled out by empirical inquiry, but it may be part and parcel of assumptions that inform empirical inquiry, and the presumption of non-organization calls for a recurrent test of such assumptions.

scholarly journals Anonymous Online Offenders – Presumption of Innocence or Presumption of Guilt? A Comparative Analysis between the Evidence Act 1950 and the Islamic Criminal Law

2018 ◽  
Vol 19 ◽  
pp. 49-60
Author(s):  
Nazli Ismail Nawang ◽  
Mohd Lotpi Mohd Yusob ◽  
Aminuddin Mustaffa
Keyword(s):  
Comparative Analysis ◽  
Law Enforcement ◽  
Criminal Law ◽  
Burden Of Proof ◽  
Freedom Of Speech ◽  
Presumption Of Innocence ◽  
Journal Articles ◽  
Law Enforcement Agencies ◽  
Basic Facts ◽  
Made In

Anonymity is perhaps the most valued feature of the Internet as its users are able to conceal their true identities or assume pseudonyms in the cyber world. Anonymity may be good for freedom of speech as any speakers could freely express their thoughts without the fear of being identified (though not impossible). Unfortunately, anonymity poses great challenges to law enforcement agencies as they would face difficulty in tracing cyber offenders. For that reason, the Malaysian Parliament has passed a new section 114A of the Evidence Act 1950 that has the effect of shifting the burden of proof on the alleged offenders to prove his innocence. This provision seems to be in contrast with the legal maxim of ‘semper necessitas probandi incumbit ei qui agit’ which means ‘he who asserts must prove’. This same principle has also been adopted in Islamic criminal law as the Islamic legal maxim has explicitly stated that ‘the onus of proof is upon the claimant, and the taking of an oath is upon him who denies’. As such, this paper attempts to scrutinise the approach that has been adopted by judges in interpreting and applying this new law. Further, a comparative analysis with Islamic criminal law will be made in order to ascertain whether such principle could be applied in certain cases since cyber criminals are hardly traceable or identifiable. The study is largely based on doctrinal research as it is primarily concerned with the review of relevant decided cases and statutory provisions as well as text books, journal articles and seminar papers. To sum up, it is submitted that the new law does not amount to an automatic presumption of guilt as the prosecutors are still required to prove the existence of relevant basic facts before the accused is mandated to prove his innocence.

scholarly journals The Presumption of Innocence Under Attack

2017 ◽  
Vol 20 (4) ◽  
pp. 569-615 ◽  
Author(s):  
Anthony Davidson Gray
Keyword(s):  
Public Safety ◽  
Due Process ◽  
Burden Of Proof ◽  
Reasonable Doubt ◽  
Mens Rea ◽  
Presumption Of Innocence ◽  
Law And Order ◽  
Actus Reus ◽  
The Right ◽  
General Community

This Article documents the increasing range of instances in which the presumption of innocence has been abrogated by legislation. Legislatures are responding to fears around terrorism and general community anxiety about law and order issues by increasing resort to reverse onus provisions. While the right of the legislature to enact laws thought to further public safety is acknowledged, the presumption of innocence is a long-standing, fundamental due process right. This Article specifically considers the extent to which reverse onus provisions are constitutionally valid in a range of jurisdictions considered comparable. It finds that the approach in use in some jurisdictions studied, testing the constitutionality of reverse onus provisions on the basis of whether they practically permit an accused to be found guilty although there is reasonable doubt about their guilt, has much to commend it. However, this is part-solution only, since legislatures may then be driven to redefine crimes to seek to effectively cast the burden of proof onto an accused by redefining what is in substance an element of a defense. Thus, it favors a substantive approach to determining what the prosecutor must show to obtain a conviction, utilizing concepts such as moral blameworthiness and actus reus/mens rea.

Abaclat and Others (Case Formerly Known as Giovanna a Beccara and Others) v. Argentine Republic

ICSID Reports ◽  
2021 ◽  
Vol 19 ◽  
pp. 364-423
Keyword(s):  
Economic Development ◽  
Due Process ◽  
Burden Of Proof ◽  
Third Party ◽  
Foreign Investor ◽  
Content Type ◽  
Host State ◽  
Sovereign Bonds ◽  
Investment Treaty ◽  
Made In

364Jurisdiction — Investment — Contract — Whether a dispute arising out of and in relation to sovereign bonds was an investment treaty dispute rather than a mere contractual dispute — Whether forum selection clauses influenced the place where the alleged investment was deemed to have been madeJurisdiction — Investment — Sovereign bonds — Contribution — Interpretation — Whether security entitlements derived from sovereign bonds constituted obligations or public securities within the definition of investment under the BIT — Whether the investors had made contributions leading to the creation of value that the contracting parties intended to protect under the BITJurisdiction — Investment — ICSID Convention, Article 25 — Interpretation — Salini test — Contribution — Whether the Salini test was the right approach to determine whether an investment had been made — Whether protection of security entitlements derived from sovereign bonds was consistent with the spirit and aim of the ICSID Convention — Whether the ICSID Convention sets the outer limits of consent given under the BITJurisdiction — Investment — Sovereign bonds — Legality — Whether the investment was made in compliance with municipal lawJurisdiction — Investment — Sovereign bonds — Territory — Economic development — Whether the investment was made in the territory of the host State — Whether it was sufficient for the invested funds to have supported the host State’s economic development — Whether it was necessary for investments of a purely financial nature to be linked to a specific economic enterprise or operation taking place in the territory of the host StateJurisdiction — Foreign investor — Nationality — Timing — Whether the investors held the nationality of the home State — Whether natural and juridical persons met certain requirements prior to the registration of the request for arbitrationJurisdiction — Foreign investor — Mass claim — Burden of proof — Whether the investors bore the burden to prove each of them met the requirements of jurisdictionJurisdiction — Foreign investor — Sovereign bonds — ICSID Convention, Article 25 — Whether a party that has purchased security entitlements derived from sovereign bonds through layers of intermediaries may still be classified as the party having made an investmentJurisdiction — Consent — Fraud — Whether the State may invoke the investor’s allegedly fraudulent consent to challenge the validity of the agreement to arbitrate the dispute365Jurisdiction — Consent — Mass claim — Procedure — Whether specific consent was required in regard to the procedure for arbitration in the form of collective proceedings or collective mass claimsJurisdiction — Consent — Prior consultation — Domestic litigation requirement — Whether prior consultation and domestic litigation requirements in the dispute resolution clause of a BIT were relevant to whether the host State consented to arbitrationAdmissibility — Mass claim — ICSID Convention — Denial of justice — Whether the mass aspect of a dispute was admissible under the current ICSID framework — Whether to deny the admissibility of mass claims would be a denial of justiceAdmissibility — Prior consultation — Domestic litigation requirement — Whether the failure to meet the requirements of prior consultation and domestic litigation rendered the claims inadmissible — Whether municipal courts would have resolved the dispute within 18 monthsProcedure — Mass claim — ICSID Convention — ICSID Arbitration Rules — Interpretation — Whether the silence of the ICSID framework in respect of collective proceedings was to be interpreted as a gap — Whether a tribunal may adapt the ICSID Arbitration Rules to enable the group examination of claims in accordance with the object and purpose of the ICSID Convention — Whether the claims of multiple claimants were identical or sufficiently homogeneous to allow for their group examination — Whether group examination would meet standards of due processProcedure — Withdrawal — Mass claim — ICSID Institution Rule 8 — Whether certain investors had withdrawn their consent prior to registration of the request for arbitrationProcedure — Discontinuance — Mass claim — ICSID Arbitration Rule 44 — Whether the request of certain investors for discontinuance should be granted — Whether discontinuance of some investors required the termination of the arbitrationAdmissibility — Abuse of rights — Agent — ICSID Arbitration Rule 18 — Whether the ulterior interests of a third party acting as agent in the arbitration constituted an abuse of rights by the investorsProcedure — Evidence — ICSID Arbitration Rule 25 — Request for arbitration — ICSID Convention, Article 36(2) — Whether updated annexes to the request for arbitration containing information related to each investor were admissible — Whether the introduction of evidence violated the requirements of the request for arbitration by unilaterally updating the identity of the parties366 Costs — Discontinuance — Whether investors who discontinued their participation in the proceeding should bear their own legal costs and a share of the arbitration costsInterpretation — ICSID Convention — Policy — Whether policy considerations were relevant to determine whether the tribunal had jurisdiction over claims arising from sovereign bonds — Whether policy considerations were relevant to determine whether mass claims were admissible

Illicit enrichment: is reconciliation a prevention of or an invitation to corruption? (The Egyptian example)

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Samah Al Agha
Keyword(s):  
Design Methodology ◽  
Burden Of Proof ◽  
Preventive Measure ◽  
Presumption Of Innocence ◽  
Journal Articles ◽  
Public Officials ◽  
Content Type ◽  
Secondary Resources

Purpose This paper aims to explore the offense of illicit enrichment by public officials. It examines whether “reconciliation” could be a preventive measure from corruption or a vehicle for corruption. Design/methodology/approach To obtain the data on identifying the illicit enrichment offense and on examining “reconciliation” as a legal tool that combats corruption, this study uses a combination of primary and secondary resources such as the assigned laws, precedents by the Egyptian Cassation Court, academic books, journal articles and reliable websites. Using the same resources, the study explores the adverse aspects associated with “reconciliation.” Findings The paper concludes that the Egyptian Illicit Gains Authority Law No.62 of 1975 jeopardizes the “presumption of innocence” because it shifts the burden of proof from the prosecution to the defendant, but the Egyptian Cassation Court decides differently in many cases, whereby it puts emphasis on the prosecution to present enough evidence on illicit enrichment. If the accused is unable to prove the legitimate source of the increased wealth, then there will not be any conviction of illicit enrichment offense due to the presumption of innocence.

scholarly journals Let Us Assume That Gene Editing is Safe—The Role of Safety Arguments in the Gene Editing Debate

2018 ◽  
Vol 28 (1) ◽  
pp. 100-111 ◽  
Author(s):  
SØREN HOLM
Keyword(s):  
Gene Editing ◽  
Legal Principle ◽  
Rhetorical Function ◽  
Made In

Abstract:This paper provides an analysis of the statement, made in many papers and reports on the use of gene editing in humans, that we should only use the technology when it is safe. It provides an analysis of what the statement means in the context of nonreproductive and reproductive gene editing and argues that the statement is inconsistent with the philosophical commitments of some of the authors, who put it forward in relation to reproductive uses of gene editing, specifically their commitment to Parfitian nonidentity considerations and to a legal principle of reproductive liberty.But, if that is true it raises a question about why the statement is made. What is its discursive and rhetorical function? Five functions are suggested, some of which are more contentious and problematic than others. It is argued that it is possible, perhaps even likely, that the “only when it is safe” rider is part of a deliberate obfuscation aimed at hiding the full implications of the arguments made about the ethics of gene editing and their underlying philosophical justifications.

The Empirical Stance ? Bas van Fraassen

2006 ◽  
Vol 32 (3) ◽  
pp. 177-177
Author(s):  
John Ross Churchill
Keyword(s):  
Van Fraassen ◽  
Bas Van Fraassen ◽  
Empirical Stance

3 Right to be Presumed Innocent

2021 ◽  
Author(s):  
Clooney Amal ◽  
Webb Philippa
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Burden Of Proof ◽  
Reasonable Doubt ◽  
International Human Rights ◽  
The Rule Of Law ◽  
Human Rights Treaties ◽  
International Human ◽  
Assessment Of Evidence ◽  
The Right

This chapter focuses on the right to be presumed innocent, one of the most ancient and important principles of criminal justice, and a prerequisite for any system based on the rule of law. The right is absolute and non-derogable and, at its core, prohibits convictions that are predetermined or based on flimsy grounds. International human rights bodies have therefore found that where a conviction is based on non-existent, insufficient, or unreliable evidence, the presumption has been violated and a miscarriage of justice has occurred. More frequently, international human rights bodies have applied the presumption to require specific procedural protections during a trial. These include guarantees that the prosecution bears the burden of proving a defendant’s guilt beyond reasonable doubt, and that the defendant should not be presented or described as a criminal before he has been proved to be one. The chapter concludes that the presumption is protected in similar terms in international human rights treaties, but also highlights divergences in international jurisprudence relating to the standard for finding that a court’s assessment of evidence violates the presumption, the permissibility of reversing the burden of proof, and the extent to which the presumption applies after a trial has been completed.

2. Burden of proof

2019 ◽  
pp. 10-36
Author(s):  
Maureen Spencer ◽  
John Spencer
Keyword(s):  
Human Rights ◽  
Burden Of Proof ◽  
Case Law ◽  
Detailed Examination ◽  
European Convention ◽  
Presumption Of Innocence ◽  
Human Rights Act ◽  
Human Rights Act 1998 ◽  
The Law ◽  
Civil Cases

This chapter focuses on the burden of proof and presumption of innocence in criminal and civil cases under Article 6 of the European Convention on Human Rights (ECHR). It considers the influence of the UK’s Human Rights Act 1998 on the allocation of the burden of proof and compares legal/persuasive burden of proof with the evidential burden. It contains a detailed examination of the case law under this Act and the criteria developed to assess where reverse burdens should apply. It draws on academic commentary in making this analysis. It also looks at situations where the legal and the evidential burden may be split. It concludes with an overview of the law on presumptions.

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